Pornography and legal implications | Sunday Observer

Pornography and legal implications

19 September, 2021
Former President of the Bar Association, Kalinga Indatissa
Former President of the Bar Association, Kalinga Indatissa

In light of the much discussed incident in Sri Lanka where a couple appeared to have created obscene material in a public place, the Sunday Observer spoke to the former President of the Bar Association, Kalinga Indatissa, PC of the legal implications of the incident and the relevant laws related to obscenity, indecent behaviour and pornography.

Indatissa added that it is not an offence for the mere possession of pornographic material, and that the Police could conduct checks and arrest by obtaining a search warrant after reporting facts to the Magistrate.

Following are excerpts of the interview:

Q: What constitutes as indecent behaviour, obscenity or pornography in Sri Lankan law?

A. The legal provisions in Sri Lanka do not provide an interpretation as to what is defined or constitutes as indecent behaviour, obscenity or pornography. This is evident, as the Obscene Publications Ordinance No. 4 of 1927, the Vagrants Ordinance No. 4 of 1841 and the Penal Code, that contain relevant laws on pornography in Sri Lanka, do not provide an interpretation for such terms.

Thus, the terms can be interpreted by considering the definitions provided in Legal Dictionaries. Accordingly, Black Law Dictionary states that ‘obscenity’ is acting in a manner that is objectionable or offensive to the accepted standards of decency. Obscenity must be looked at by observing things from the mind of a reasonable prudent man. Therefore, if the words a person uses is not something which a reasonable prudent man would use or if a person acts in a manner that no reasonable prudent person would act; it can be identified as obscenity.

Similarly, Black Law Dictionary defines ‘Indecency’ as acting in a manner against good behaviour that is unfit to be seen or heard or obscene in nature and ‘Pornography’ relates to materials which contains obscene literature, as explained above.

Q. How does the law differentiate between unacceptable behaviour and speech?

A. The law does not differentiate between behaviour and speech. Section 287, 365A of the Penal Code and Section 4(c) of the Vagrants Ordinance is relevant in this regard.

Section 287 of the Penal code deals with both obscene behaviour and indecent speech. Here, it states that if a person in a public place sings, recites or utters any obscene song, ballad or words to annoy another; it would amount to an offence. It is evident that the act of doing something so far as to annoy another, results in both obscene behaviour as well as indecent speech.

Similarly, Section 365A of the Penal Code states that, any act of gross indecency by a person with another, either in public or private amounts to an offence. Here, the word “any act” may be interpreted to include indecent behaviour and speech.

Section 4(c) of the Vagrants Ordinance relates to an offence committed by a person who willfully exposes in an indecent manner that is an annoyance and disgust to others. Here too, the term indecent manner may be interpreted to include indecent behaviour and speech.

Q. What are the significant cases tried under Sri Lankan law in the past and what lessons have we learnt?

A. There are several significant judicial pronouncements that deal with obscenity. I will discuss a few case laws that have taught us what one must establish as an ingredient of an offence.

The judgment in Sub inspector of Police v. Dharmabandu 33 NLR 114 is a significant case as it discusses the mental element that is required for something to be identified as being obscene. It was held that, a document or publication may be considered as obscene, if in the mind of the person who refers to it, presumes it to be so. A similar decision was observed in the case of De Bruin v. Dharmabandu 32 NLR 88.

The ingredients of the offences stipulated in Sections 285 and 286 of the Penal Code were discussed in the case of K. E. Perera v. R. E. Kitto 61 NLR 439. In Croos v. Shafi 28 NLR 233 it was held that an offence in Section 287 of the Penal code can only be established if, the ingredient of ‘annoyance’ was evident. The same principle was followed in the case of Eliyathamby v. Inspector of Police, Kalmunai 64 NLR 264.

Q. Most laws have been drawn up before the digital age. How relevant are present laws with regard to pornography?

A. The traditional interpretation of obscene publication was ideally limited to publications made in a printed or a written form. However, with the advancement of technology, the storage of obscene material on an individual’s personal computer or mobile phone was also recognised as obscene publications.

Therefore, although the present law does not entail the term ‘pornography’, it is recognised by the laws relating to it. However, although the present laws recognise pornography, there are still several areas of law on this matter that require amendment.

Q. Is it against the law to be in possession of pornographic material in one’s digital devices such as the mobile phone? Can the police make random checks and arrests?

A. There are several factors that must be considered, to determine if the pornographic material on a mobile phone amounts to an offence.

It is important to remember that, mere possession of pornographic material does not amount to an offence.

Section 2 of the Obscene Publication Ordinance states it will amount to an offence only if such materials are used for the purposes of importing, exporting, carrying on or taking part in business, or even assisting any one to trade or for the distribution or public exhibition to make or produce or even for being in possession for any purpose that have been stated or otherwise or if there are any obscene writings, drawings, prints, paintings, printed manner, pictures, posters emblems, photographs, cinematograph films, video cassettes or for any other obscene objects.

Therefore, an offence will only be established after determining what the purpose for possessing the obscene material was for.

A study of the relevant provisions in the Penal Code and Vagrants Ordinance shows that it is not an offence to use obscene publications for one’s own personal use. However, since this is contrary to the intent of the Act, it will be necessary to amend the law to such effect.

With regard to the question on the Police making random checks and arrests, the Police do not have any powers to perform random checks on persons for possessing obscene materials.

The Police could only do so by obtaining a search warrant after reporting facts to the Magistrate stating that, the individual has used the obscene material for purposes such as trading or distributing or for public exhibition or if they have used it in any other similar context as discussed above.

The Police also do not have powers to arrest an individual for the mere possession of obscene materials. However, if a person uses the obscene materials in a manner that can be identified as an offence under the Obscene Publication Ordinance, then the Police may arrest the individual after obtaining a search warrant by reporting facts to the Magistrate.

Q: What is the minimum and maximum sentencing for pornography?

A: If it can be proved that the obscene material was used for the purposes deemed to be an offence under the Obscene Publication Ordinance, then a first time offender will be punished with an imprisonment of a period not exceeding six months and / or a fine of Rs. 2500.

If the offender has committed the offence after a conviction for the first offence, then they will be imprisoned for a term not exceeding six months and with a fine not exceeding Rs. 5000.

Q: What are the legal implications for those who use pornography for commercial purposes like the couple we saw in recent media reports?

A: Using obscene publications for commercial purposes is a punishable offence under the Obscene Publication Ordinance No. 4 of 1927. Section 2 of the Ordinance relates to the offences and the punishment for committing the offence. This section was amended by the Increase of Fines Act No. 12 of 2005.

Accordingly, the sentencing is the same as mentioned in the previous answer. The same punishment will follow for abetting the offence.

Furthermore, since the much discussed couple appeared to have created obscene material in a public place, Section 365A of the Penal Code is relevant. This section provides that gross indecent behaviour in a public place with another individual is an offence punishable with imprisonment which may extend to two years and/or with a fine.

Q: They have sent their pornographic material to a US-based website. Can they still be tried in Sri Lanka?

A: Section 2(2)(b) and Section 3(2) of the Obscene Publication Ordinance is relevant in this instance.

Since the couple had circulated/exported the obscene material, it amounts to an offence and they could be tried in the Courts of Sri Lanka.

Section 3 – (2) Any person who in Sri Lanka aids, abets, counsels, or procures the commission in any place outside Sri Lanka of any offence punishable under the provisions of any corresponding law in force in that place, or does any act preparatory to, or in furtherance of, any act which if committed in Sri Lanka would constitute an offence against this Ordinance, shall be deemed to have committed an offence against this Ordinance and shall be punishable accordingly.

(3) The expression “ corresponding law” in this Ordinance means any law stated in a certificate purporting to be issued by or on behalf of the Government of any country outside Sri Lanka to be a law providing for the suppression of the circulation of and traffic in obscene publications in accordance with the provisions of the International Convention for that purpose signed at Geneva on September, 12, 1923, and any statement in any such certificate as to the effect of the law mentioned in the certificate, or any statement in any such certificate that any facts constitute an offence against that law, shall be conclusive.

Q: What kind of legal frameworks are there in other countries, especially in the West, where pornography is an entire industry? How different are their laws compared to Sri Lanka?

A: In the legal framework of Western countries such as the United Kingdom, determining whether or not pornography is legal is not quite straightforward. There are several laws, regulations and judicial processes that regulate pornography in the UK. There are however, certain categories of pornographic material that are expressly considered illegal. For instance, child pornography, revenge pornography and extreme pornography are illegal.

Unlike in Sri Lanka; the Laws of UK relating to pornography are much more developed. For instance, Chapter 3 of the Digital Economy Act 2017 was developed so far as to regulate online pornography.

This act imposes an age verification system that prevents people under 18 years of age from having access to commercially operated websites. These websites must also obtain a ‘R18 certificate’ for their content, from the British Board of Film Classification. The R18 certificate denotes consensual sex between adults and also only allows for such videos to be shown to adults over the age of 18 years.

These videos may only be shown in specially licensed cinemas and/or could be supplied only to adults in licensed sex shops. This initiation prevents children from accessing obscene material.

The legal framework of United States of America is also advanced as in the UK. Pornography is generally legal in the USA. However, there are certain categories as in the UK that are considered illegal such as child pornography, revenge pornography and material that are obscene in nature. Pornography is protected under the first amendment to the Constitution of the United States that concerns the freedom of expression. There are also separate federal laws which control obscene materials in the USA.

The difference between the laws in Western countries and Sri Lanka, is that although to a certain extent the laws of Sri Lanka speaks of offences and relevant punishments relating to obscene materials, the laws yet lack to aptly reflect the current advancement in todays’ world.